16.1In chapter 15 we suggest that replacing the common law executor rule with new statutory provisions may make the law more accessible and effective for those in a burial dispute, and introduce greater clarity and certainty as to the legal position. In this chapter we set out the possible options for a new statutory decision-making methodology that might replace the executor rule.
Cultural identity is always in the making through people’s everyday habits, practices and institutions. This is never more so than in death. The distinctive features of a culture can best show themselves in death, because the ways that people bid farewell to and inter their dead are a well-worn path for asserting what is held dear to the departed and their nearest and dearest.
16.4In any new approach, the increasing diversity of New Zealand and the rights of minority groups must be accommodated. The role of Māori customary law must be reflected in any new approach that is developed. At the same time our reform proposals must be realistic and able to operate within a unitary legal system.
16.5This chapter is intended to enable people to give their views with an awareness of the different cultural perspectives involved and the cultural, policy and legal implications of the various options for reform.
16.6We begin by setting out, at [16.9] to [16.26], the range of matters that may be relevant to a person making a burial decision. Not everyone will place the same value on the same matters. That is important to keep in mind when later we discuss the possible design of a new statutory regime. It must be flexible; that is, able to accommodate instances of disagreement and dispute where all involved take a different view as to which factor or factors should take priority in the burial decision.
16.8If there is a widely-held view that the New Zealand’s burial legislation should recognise such a right of decision, there are consequential policy questions relating to who should be entitled to exercise that right, how it should be exercised, and when it becomes operative. We explore these at [16.41] to [16.81].